ACLU Comment on U.S. Admission to Killing Americans in Targeted Killing Program

NEW YORK – Attorney General Eric Holder sent a letter to Congress confirming that the government has killed four Americans since 2010 in strikes overseas, and claiming that the government’s actions were justified.

“This letter is evidence that Congress has a crucial oversight role, and that the executive branch is accountable to Congress and the American people. We applaud Senate Judiciary Committee Chairman Leahy for his insistence that the veil of secrecy be lifted on the government's killing program,” said Laura W. Murphy, director of the American Civil Liberties Union’s Washington Legislative Office.

“This is a small step towards transparency, and we welcome the government’s recognition that it must publicly explain its actions when it decides to kill an American citizen. Much more openness is still needed. The government must disclose its still-secret targeted killing memos so the public can determine if they contain criteria as vague and elastic as its definitions of ‘imminence’ and ‘feasibility of capture,’” said Hina Shamsi, director of the ACLU National Security Project. “The letter also underscores how little the public still knows about this unlawful program and its consequences, including the previously unknown killing of a fourth American citizen more than a year ago. It does nothing to shed light on the government’s legal criteria and factual basis for the killings of thousands of non-citizens – including reportedly hundreds of civilians – in a program that is unlawful, dangerous, and unwise.”

Shamsi added, “When the U.S. government kills its own citizens far from any battlefield, it is not enough to describe its decision and partial reasoning in a letter – the lawfulness of such killings must be evaluated in court. We assume this new step towards transparency means the government will change its litigation stance in our lawsuits seeking information about the targeted killing program, and hope the government will respond on the merits in our lawsuit seeking due process for the killings of three Americans in Yemen.”

The ACLU, together with the Center for Constitutional Rights, has filed a lawsuit challenging the constitutionality of the killing of U.S. citizens Anwar al-Awlaki and Samir Khan in September 2011 and al-Awlaki's 16-year-old son Abdulrahman the following month. The government has argued that the courts have no role to play in assessing whether the killings were lawful and the case should be dismissed. Oral argument in the case is scheduled for July 19 in Washington.

The ACLU is also currently litigating two Freedom of Information Act lawsuits seeking information about the targeted killing program. In March 2013, the D.C. Circuit Court of Appeals ruled that the CIA could no longer deny its intelligence interest in the targeted killing program given the numerous public statements made by CIA and administration officials. The FOIA request in that case seeks information on the use of drones in the killing program, including its legal basis, scope, and the number of civilian casualties caused by drone strikes. The appeals court sent the case back to the district court in Washington, where the CIA will have to release documents that respond to the ACLU's request or legally justify withholding them.

Last month in New York, the ACLU appealed its other FOIA case to the Second Circuit Court of Appeals after the district court ruled that the CIA and the Departments of Justice and Defense could refuse to provide documents. The ACLU's FOIA request in that case seeks disclosure of legal memos written by the Justice Department's Office of Legal Counsel that provided justifications for the targeted killing of Anwar al-Awlaki, as well as records describing the legal and factual basis for the killings of the three Americans.